things I wonder about...

Here are some things I just don't seem to understand.

1. If it costs more to house someone in jail per year, than child
support is in many of the cases of a parent who is not supporting
their child, not even including the loss of tax revenue from that
invividual, isn't it in the "best interest of the child" and the
community as a whole for the darn government to pay the child support
and leave the NCP alone? I mean, honestly, the child is not receiving
"their" money and putting their NCP in jail is not going to help that
situation anyway.

2. If it's a felony to not pay child support, then can my son, who
cannot be supported by his father thanks to the idiots at the CSE
office garnishing his wages in error and basing his child support on a
30K higher salary than they should've sue the state of Texas by not
allowing his father to support him?

3. If a CP and child in Texas deserve 20% of NCP income and the NCP
has another child living with him as well, why doesn't he deserve at
least 20% of the NCP income? Why isn't the exact % of income
subtracted from the NCPs earnings before child support is
calculated?

4. In the case that the state of Texas wants CS to be paid by the
estate upon death of the obligor or to make the NCP have an insurance
policy to cover his child support in case of death, if this is in the
best interest of the child, why doesn't the state and the same people
advocate that the CP also have a insurance policy to support the child
in case of their death?

5. In states where an NCP is forced to support an ADULT, why is it
that if they are all about the best interest of a child, they don't
base that support upon full deductions for any minor children living
with the NCP or any other children of the NCP? Aren't children under
18 "entitled" to support? I would think a child under 18 is more
entitled than an ADULT over 18.

6. In states where dental support is also required, how can dental
support be a priority over the basic needs of food/shelter and even
MEDICAL insurance of a child living with an NCP?

7. If the cost of raising a child would be taken from the estate of
an obligor, can someone please tell me if the social security they
would also be receiving would be for the CPs vacation or new car? I
thougt that's what social security for minor children was...Seems the
NCP who has a child living with him is only entitled to social
security, but the one not living with him is entitled to support from
a dead person as well as social security...How lovely.


Everyday I battle these things. If all children are entitled to
support (at outrageous amounts) from both their parents, why is it
that it only applies to the NCP? Can someone please tell me if I
should divorce my husband so that my child has the same rights as his
half-sister?

On Mar 20, 10:47�am, "whatamess" wrote:
Here are some things I just don't seem to understand.

1. *If it costs more to house someone in jail per year, than child
support is in many of the cases of a parent who is not supporting
their child, not even including the loss of tax revenue from that
invividual, isn't it in the "best interest of the child" and the
community as a whole for the darn government to pay the child support
and leave the NCP alone? *I mean, honestly, the child is not receiving
"their" money and putting their NCP in jail is not going to help that
situation anyway.

2. *If it's a felony to not pay child support, then can my son, who
cannot be supported by his father thanks to the idiots at the CSE
office garnishing his wages in error and basing his child support on a
30K higher salary than they should've sue the state of Texas by not
allowing his father to support him?

3. *If a CP and child in Texas deserve 20% of NCP income and the NCP
has another child living with him as well, why doesn't he deserve at
least 20% of the NCP income? *Why isn't the exact % of income
subtracted from the NCPs earnings before child support is
calculated?

4. *In the case that the state of Texas wants CS to be paid by the
estate upon death of the obligor or to make the NCP have an insurance
policy to cover his child support in case of death, if this is in the
best interest of the child, why doesn't the state and the same people
advocate that the CP also have a insurance policy to support the child
in case of their death?

5. *In states where an NCP is forced to support an ADULT, why is it
that if they are all about the best interest of a child, they don't
base that support upon full deductions for any minor children living
with the NCP or any other children of the NCP? *Aren't children under
18 "entitled" to support? *I would think a child under 18 is more
entitled than an ADULT over 18.

6. *In states where dental support is also required, how can dental
support be a priority over the basic needs of food/shelter and even
MEDICAL insurance of a child living with an NCP?

7. *If the cost of raising a child would be taken from the estate of
an obligor, can someone please tell me if the social security they
would also be receiving would be for the CPs vacation or new car? *I
thougt that's what social security for minor children was...Seems the
NCP who has a child living with him is only entitled to social
security, but the one not living with him is entitled to support from
a dead person as well as social security...How lovely.

Everyday I battle these things. *If all children are entitled to
support (at outrageous amounts) from both their parents, why is it
that it only applies to the NCP? *Can someone please tell me if I
should divorce my husband so that my child has the same rights as his
half-sister?

There is no such thing as equal protection under the law, that's why.

"whatamess" wrote
...........................
Everyday I battle these things. If all children are entitled to
support (at outrageous amounts) from both their parents, why is it
that it only applies to the NCP? Can someone please tell me if I
should divorce my husband so that my child has the same rights as his
half-sister?
==
Herein lies the judicial reasoning for/against the support of subsequent
children. This case mentions other cases that you might wish to read.
I have posted Pohlmann v Pohlmann here a few times over the years and it can
be found via Google. It is a remarkable judicial tribute to our childrens'
dilemma.
There are mothers of subsequent children here on the newsgroup (including
myself, but my steps are now grown) who understand exactly what you are
dealing with. Cutting these children out is a profound injustice and
hopefully the CS guidelines that fail to recognize this will be changed.



Gallaher v. Elam

No. E2000-02719-COA-R3-CV (Tenn.App. 01/29/2002)



[1] IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE
July 11, 2001 Session
[2] No. E2000-02719-COA-R3-CV
[3] 2002.TN.0000129
[4] January 29, 2002
[5] DEE ANN CURTIS GALLAHER
v.
CURTIS J. ELAM
[6] Appeal from the Juvenile Court for Knox County
No. B-3443 Carey Garrett, Judge
[7] Wayne Decatur Wykoff, Knoxville, Tennessee, for
the Appellant, Dee Ann Curtis Gallaher. L. Caesar Stair, III, Knoxville,
Tennessee, for the Appellee, Curtis J. Elam. Paul G. Summers, Attorney
General & Reporter, and Stuart F. Wilson-Patton, Senior Counsel, Office of
the Attorney General, Nashville, Tennessee, for the Intervening Petitioner,
State of Tennessee.
[8] The opinion of the court was delivered by:
Houston M. Goddard, Presiding Judge
[9] This is an appeal by the State of Tennessee from
a determination of the Juvenile Court of Knox County which held Tenn. Comp.
R & Regs. 1240-2-4-.03(4), issued pursuant to T.C.A. 36-5-101,
unconstitutional as violative of Section 1 of the 14th Amendment to the
Constitution of the United States. Dee Ann Curtis Gallaher also appeals,
contending that the Trial Court was in error in setting child support. We
affirm the Trial Court in its finding the Regulation in question
unconstitutional and vacate the judgment as to child support.
[10] Tenn.R.App.P. 3 Appeal as of Right; Judgment of
the Juvenile Court Affirmed in Part; Vacated in Part; and Remanded
[11] Houston M. Goddard, P.J., delivered the opinion
of the court, in which D. Michael Swiney, J., joined. Herschel P. Franks,
J., filed a dissenting opinion.
[12] OPINION
[13] The principal issue raised in this appeal is
whether the following rule and regulation promulgated by the Department of
Human Services, pursuant to T.C.A. 36-5-101, violates the Equal Protection
Provision contained in Section 1 of Amendment 14 to the United States
Constitution:
[14] Children of the obligor who are not included in a
decree of child support shall not be considered for the purposes of reducing
the obligor's net income or in calculating the guideline amount. Tenn. Comp.
R & Regs. 1240-2-4-.03(4).
[15] Because the facts are undisputed and only a
question of law is presented for our review of the Trial Court's finding the
foregoing rule and regulation unconstitutional is de novo without a
presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26
(Tenn. 1996).
[16] Jacob Dylan Gallaher was born to Dee Ann Curtis
Gallaher on August 25, 1993. Blood test results show a 99.76 percent
probability that Curtis J. Elam was the father of Jacob. An agreed order was
entered on September 27, 1994, declaring him to be such and establishing
child support at $750 per month.
[17] At the time of conception of Jacob, Dr. Elam was
married and the father of three children. At a hearing before the Referee in
which Ms. Gallaher was seeking additional child support, the Referee
increased the child support to $2100 per month, and ordered Dr. Elam to pay
$200 per month as additional support because the father exercised no
visitation privileges.
[18] Dr. Elam appeals the Referee's decision to the
Juvenile Court. The Juvenile Judge entered an order holding the guidelines
in general violated the Doctrine of Separation of Powers and the specific
guideline in question violated the Due Process and Equal Protection Clauses
of the State and Federal Constitutions. He thereupon awarded child support
in the amount of $1600, the amount Ms. Gallaher testified was necessary for
Jacob's support, plus an additional $200 because the father did not exercise
his visitation rights. Nash v. Mulle, 846 S.W.2d 803 (Tenn. 1993). Finally,
he ordered $15,000 to be placed in a trust fund by Dr. Elam for the benefit
of Jacob.
[19] Both Ms. Gallaher and the State of Tennessee
appeal the Trial Court's decision but only the State addresses the
constitutional issue.
[20] The State points out that there is a strong
presumption that legislative acts and those which include, under the holding
of our courts, rules and regulations promulgated by various departments of
government are constitutional, and that every doubt should be resolved in
favor thereof. It also cites cases which hold that the Equal Protection
Clause guarantees all persons similarly situated will be treated alike, that
in this case we should not indulge in a strict scrutiny, but rather a
"reduced scrutiny or rational basis test," and that statutory
classifications will be upheld if "some reasonable basis can be found for
the classification...or any state of facts may reasonably be conceived to
justify it." Riggs v. Burson, 941 S.W.2d 44 (Tenn.1997).
[21] We agree with the foregoing statement of law.
[22] We have found no Tennessee case which addresses
the specific issue raised, but in one case, State ex rel. v. Poteet, an
unreported opinion of this Court filed in Nashville on March 17, 1999, where
the facts were the reverse in that the putative father of a child born out
of wedlock was ordered to pay child support without considering the fact
that he had three additional children by a subsequent marriage.
[23] This Court affirmed the action of the Trial Court
in awarding the first-born child 21 percent under the guidelines and did not
consider the other three children subsequently born. In that case no
constitutional issue was raised, but in a concurring opinion Judge Koch
strongly suggests that had it been raised the regulation in question could
very well have been held unconstitutional.
[24] The language Judge Koch used is instructive:
[25] There has been surprising little judicial
consideration of the constitutional legitimacy of the "first families first"
bias inherent in child support guidelines like the ones currently in effect
in Tennessee. Only one court, in a very cursory fashion, has held that the
guidelines can withstand rational basis equal protection scrutiny. See
Feltman v. Feltman, 434 N.W.2d 590, 592 (S.D. 1989). However, this holding
prompted a dissenting justice to observe that the classification between
children of a former marriage and children of a current marriage is
"unconstitutional because it discriminates against children of a
`non-custodial' parent's second family, denying them equal protection under
the law. This statute classifies children by accident of their birth, a
classification that has no rational relationship to any legitimate
governmental interest." Feltman v. Feltman, 434 N.W.2d at 593-94 (Henderson.
J., dissenting). Others have raised similar concerns, not only about the
reasonableness of the "first families first" bias but also about its effects
on other fundamental rights and interests of the non-custodial parent and
his or her spouse. See Rebecca B. Garland, Second Children Second Best?
Equal Protection for Successive Families Under State Child Support
Guidelines. 18 Hastings Const. L.Q. 881 (1991).
[26] This issue involves a child's right to receive
support from a common biological parent. All children of the same parent
have the right to share fairly with their siblings in their common parent's
resources. When other states have adopted child support guidelines that
accommodate this right, the Department cannot place administrative
convenience ahead of fundamental fairness. The Department cannot simply
shrug its bureaucratic shoulders and announce that it has done the best it
can.
[27] Tennessee's child support guidelines contain the
standards by which they should be measured. Their stated purpose is "to make
child support awards more equitable by ensuring more consistent treatment of
persons in similar circumstances." Tenn. Comp. R. & Regs. r.
1240-2-4-.02(2)(b). It should be apparent that the circumstances of children
with a common biological parent are similar. Accordingly, when this issue is
properly raised in a future case, the courts should put the guidelines'
"first families first" bias to the test and should carefully consider
whether it passes muster under the state and federal constitutions.
[28] As already noted, the Juvenile Judge found that
the provision violated the Equal Protection Clause of the United States
Constitution, as well as the Due Process Clause and the Doctrine of
Separation of Powers provision of the Tennessee Constitution, which results
in this appeal, wherein the constitutional issues are addressed by the
office of the Attorney General of this State.
[29] The Juvenile Court, in ruling on the Equal
Protection feature of this appeal, relied upon two dissenting opinions. One
from the State of South Dakota, and the other from the State of Florida. In
both of those cases, the majority found that the applicable statute should
be viewed in the light of rational standard basis, rather than a suspect
classification or a fundamental right. In both cases it was the last-born
child who was given short shrift.
[30] In Feltman v. Feltman, 434 N.W.2d 590, 593 (S.D.
1989), Justice Henderson dissented from the majority opinion upholding the
South Dakota Statute, and used the following language:
[31] Are children of a second marriage "children of a
lesser god"?
[32] Are children of a second marriage lesser children
under the United States Constitution?
[33] Are children of a second marriage any less hungry
or naked without the support of their father?
[34] Should we weep for children of a second marriage
at their birth, rather than at their death?
[35] This decision is reduced to an old adage, "First
come, first served." In my judgment, all of God's children, born of the
first or second marriage, must be afforded the same consideration under law.
[36] We have, before us, yet another case where the
"guidelines chart" is literally supreme. It is further noted, by this
minority writer, that the majority suggests, perhaps inferentially, that the
priority of the child support for the first marriage results in "imperfect
results." Indeed, the law is not, perfect, but as we write it, we should
strive for its perfection.
[37] SDCL 25-7-7 is unconstitutional because it
discriminates against children of a "non-custodial" parent's second family,
denying them equal protection under the law. This statute classifies
children by accident of time of birth; a classification that has no rational
relationship to any legitimate governmental interest. Conceptually, this
discrimination is as irrational, and hence unconstitutional, as
discrimination against illegitimate children.
[38] In Pohlmann v. Pohlmann, 703 So.2d 1121, 1128
(Fla.App. 5 Dist. 1997) Justice Harris also dissented from the majority
opinion upholding the Florida Statute in an equally vigorous manner:
[39] The dissent in Feltman asks the question: "Are
the children of a second marriage children of a lesser god"? It also asks
whether such children are lesser under the United States Constitution; are
they less hungry or less naked without their parent's support" It finally
asks whether we should weep for the children of a second marriage when they
are born instead of when they die? The dissent in Feltman's response to
these questions is that all children of the parent should be considered
equal. The dissent asserts, as do I, that the mere fact that discrimination
is in the guidelines or in the statute does not make it right, nor does it
make it constitutional. Nor does the fact that it is designed by some
committee make it so. (Emphasis in original.)
[40] Even though it is a discomforting topic, perhaps
we should consider the fairness issue. Suppose it were the mother who was
required to pay support to the children of her first marriage. And assume
that upon remarriage she elects to have additional children. By doing so,
she has voluntarily become unemployed rendering further child support
problematic. Assume further that she elects to become a stay-at-home mother
to raise her new children. The court would not, could not, and should not
intervene. And there is a good reason. The children of the first marriage
simply have no more veto power over the non-custodial parent's future
reproductive decisions than a child of an intact marriage has over his
parents' decision to have additional children. And such children of the
first marriage, at least in my view, have no vested right to a higher
standard of living based on an allocation of a greater percentage of their
parent's income than do the children of a second marriage.
[41] Because the state has no business discriminating
between children based solely on the fact of a divorce, there is no
legitimate state purposes in requiring a parent to allocate his or her
income more to one child than another. The state's attempt to do so is
state-mandated, court-enforced child abuse; it is not only cruel
discrimination, it is unconstitutional.
[42] We find the dissenting opinions more persuasive
than the persuasive authority of the majority opinions, and adopt the
reasoning thereof in the disposition of this appeal.
[43] As heretofore noted, the Trial Court also found
the regulation in question violates the constitutional provision as to Due
Process and the Doctrine of Separation of Powers. However, in light of the
disposition of the Equal Protection issue, we do not deem it necessary to
make a judgment as to the other grounds relied upon by the Juvenile Judge.
[44] Having determined that the rule and regulation
hereinbefore set out is constitutionally infirm, we recognize that an appeal
has been filed by the mother of the child in question taking exception to
the amount of support decreed by the Juvenile Judge.
[45] It appears that Dr. Elam's income for the year
1999, the last year figures were available prior to the judgment below, is
somewhat of an aberration, in that the proof shows the doctor had
considerably more income in the two preceding years. We believe it is
appropriate to remand the case for the Juvenile Judge to hear additional
proof as to Dr. Elam's net income as defined by the guidelines and then make
the following awards: (1) award for child support; (2) award for any
arrearage which may be found; (3) if he finds it appropriate, require an
additional payment for the fact that the child's custody is exclusively with
the mother, and (4) if he finds it appropriate, establish a trust fund for
educational purposes.
[46] As to how the child support award should be
calculated, it appears there are perhaps two methods. Number one is to
determine an award under the guidelines for four children and make an award
of one-fourth of that amount to Jacob. note1 The other method would be to
determine the appropriate amount under the guidelines for three children,
deduct that amount from Dr. Elam's net monthly income, and make an award to
Jacob applying the guideline percent for one child.
[47] In view of the fact that the first-born three
children are living in one household rather than separate households, where
household expenses would in large measure be the same for one child as for
three, it would appear the latter method would be preferable under the facts
of this case.
[48] For the foregoing reasons the judgment of the
Juvenile Court is affirmed in part, vacated in part, and the cause remanded
for proceedings not inconsistent with this opinion. Costs of appeal are
adjudged one-half against the State and one-half against Dr. Elam.
[49] DISSENTING OPINION
[50] Tennessee Comp. R. & Regs. 1240-2-4-.03(4),
promulgated by the Department of Human Services pursuant to Tenn. Code Ann.
§36-5-101 reads:
[51] Children of the obligor who are not included in a
decree of child support shall not be considered for the purposes of reducing
the obligor's net income or in calculating the guideline amount. In
addition, these children should not be considered by the court as a reason
for deviation unless they meet the requirements of Rule 1240-2-4-.04(4).
[52] This Rule was found to be unconstitutional by the
majority on the grounds that the quoted provision "discriminates" against
other children of obligor, and in this case residing in the household of the
obligor.
[53] I dissent from the majority's holding for several
reasons. First, courts are admonished not to decide constitutional questions
unless it is "absolutely necessary". Strait v. Burdin, 924 S.W.2d 82 (Tenn.
1996).
[54] The majority recognizes that the constitutional
issue would not call for a strict scrutiny analysis, but rather that the
"reduced scrutiny or rational basis test" is applicable. See Riggs v.
Burson, 941 S.W.2d 44 (Tenn. 1997).
[55] This record presents no factual basis for either
the Trial Court or this Court to reach the constitutional issue raised. One
of appellee's arguments is that the guidelines treat children differently
who are subject to a support order, as opposed to those who are not, because
the child who gets a support award gets a definite percentage of the
obligor's income and there is no showing that the others will get an equal
amount. Appellee, however, has provided no evidence that this was actually
the case. The father has earned an average of approximately $300,000.00 per
year for the past five years, which puts him in the top 1% of income of all
income tax filers. note2 The three children living with the father enjoy a
very high standard of living, including private schools at the cost of
$3,000.00 per month, reside in a home with a monthly mortgage payment of
$3,800.00, and have access to expensive motor vehicles, thereby enjoying an
unreasonably high standard of living, while the biological child which is
subject to the guidelines must exist on a small fraction of such benefits.
The facts of this case demonstrate that this child, if anything, gets
unequal treatment, vis a vis the marital children. Yet the majority
addresses the constitutional issue and holds the above-mentioned regulation
unconstitutional, without citing any case authority for its position, but
misguidedly relies on two maudlin dissents from other jurisdictions for its
decision.
[56] It is the duty of this Court and all courts to
uphold a statute if the statute is not purely arbitrary. Epstein v. State,
366 S.W.2d 914 (Tenn. 1963).
[57] The guidelines state they were enacted to comply
with federal and state requirements, and that some of the goals behind the
enactment of the same were to "decrease the number of impoverished children
living in single parent families", to "make child support awards more
equitable by ensuring more consistent treatment" of similarly situated
individuals, to provide guidelines to parties and the courts and to improve
the efficiency of the court process, and to "ensure that when parents live
separately, the economic impact on the child(ren) is minimized and to the
extent that either parent enjoys a higher standard of living, the child(ren)
share(s) in that higher standard." Tenn. Comp. R. & Regs. 1240-2-4-.02. The
guidelines also provide that they are to be applied as a rebuttable
presumption, and that if the court finds sufficient evidence to rebut the
presumption, it can make a different award so long as the court makes
specific findings regarding why the guideline amount is inappropriate, and
so long as the court consider the best interests of the child. Tenn. Comp.
R. & Regs. 1240-2-4-.02(7).
[58] The dissenting opinions that the majority relies
upon assert that the guidelines are unwise and are inequitable. However, our
Supreme Court has stated that it is not authorized to strike down a statute
that the court may consider unwise or inequitable, but the statute must
create a real deprivation of constitutional rights. Baldwin v. Knight, 569
S.W.2d 450 (Tenn. 1978).
[59] These guidelines provide a multitude of valid
reasons for their existence, including equity and predictability of child
support awards and, more importantly, to ensure children are not adversely
impacted because their parents do not live together. The guidelines ensure
that children who do not live with the parent who makes substantial sums of
money, will get the benefit of the parent's higher income, just as if they
lived in the parent's household. While it is true that this child's mother
can pay for basic necessities on her income of $36,000.00 per year, it
certainly does not provide a standard of living anywhere near that of the
father's three other children, who enjoy the benefits of an income of ten
times that amount or more in some years than this child's mother earns.
[60] The application of the guidelines in this case is
fair, and does not treat this child any better than the other children. In
fact, if it were not for the guidelines, this child would certainly be
treated much worse than the other children, as has been aptly demonstrated
by the father's vehement resistance to paying child support in this case.
note3 Even with the guideline support, this child will likely not have all
of the material things enjoyed by the other children. Thus, there is no
disparate treatment. Given the circumstances of the case, there can be
deviations from the guidelines, since they are just a rebuttable
presumption. In this case if the father could show that the child support in
accordance with the guidelines would cause a negative impact on his other
children and create economic hardship, then the court has the authority to
order a downward deviation. The guidelines expressly provide for this in
Tenn. Comp. R. & Regs. 1240-2-4-.04(4), and state that the court may
consider such an action as necessary to "achieve equity between the
parties". With this "escape valve" provision in place, there can be little
argument that the guidelines create disparate treatment, since the court has
the authority to consider hardships which would affect the other children.
note4
[61] I would uphold the guidelines as constitutional
and resolve every doubt in favor of constitutionality. Riggs v. Burson, 941
S.W.2d 44 (Tenn. 1997); In re Adoption of M.J.S., 44 S.W.3d 41 (Tenn. Ct.
App. 2000). Also, as this Court has previously recognized, the guidelines
have been before our Supreme Court on many occasions and no concern has been
expressed regarding their constitutionality. See State ex rel. Armstrong v.
Coleman, 2001 WL 557991 (Tenn. Ct. App. May 24, 2001), citing State, ex rel.
Coleman v. Clay, 805 S.W.2d 752 (Tenn.1991); Nash v. Mulle, 846 S.W.2d 803
(Tenn.1993); Jones v. Jones, 930 S.W.2d 541 (Tenn.1996); Brooks v. Brooks,
992 S.W.2d 403 (Tenn.1999).
[62] I would reverse the Judgment of the Trial Court
and enter Judgment in accordance with the guidelines.
[63] Herschel Pickens Franks, J.

--------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------

[64] Note 1 - This was the method employed by this
Court in the case of Adams v. Reed, 874 S.W.2d 61 (Tenn. Ct. App. 1993),
which was decided prior to the promulgation of the regulation here under
siege.
[65] Note 2 - Source: IRS data supplied to Congress;
1999 adjusted gross income of $293,000.00 up, puts taxpayer in the top 1% of
income of all filers.
[66] Note 3 - Some individuals only learn through
experience the reality of the ancient Appalachian folklore, that if you
dance you have to pay the fiddler.
[67] Note 4 - The restriction in the guidelines as to
children not in the decree goes to establishing the guideline percentage and
not whether their support would create a hardship on the obligor.








--------------------------------------------------------------------

On Mar 20, 12:03�pm, "Gini" wrote:
"whatamess" wrote
.......................... Everyday I battle these things. *If all children are entitled to
support (at outrageous amounts) from both their parents, why is it
that it only applies to the NCP? *Can someone please tell me if I
should divorce my husband so that my child has the same rights as his
half-sister?

==
Herein lies the judicial reasoning for/against the support of subsequent
children. This case mentions other cases that you might wish to read.
I have posted Pohlmann v Pohlmann here a few times over the years and it can
be found via Google. It is a remarkable judicial tribute to our childrens'
dilemma.
There are mothers of subsequent children here on the newsgroup (including
myself, but my steps are now grown) who understand exactly what you are
dealing with. Cutting these children out is a profound injustice and
hopefully the CS guidelines that fail to recognize this will be changed.

* * * * * * Gallaher v. Elam

* * * * * * No. E2000-02719-COA-R3-CV (Tenn.App. 01/29/2002)

* * * * * * * * * [1] * * *IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE
July 11, 2001 Session
* * * * * * * * * [2] * * *No. E2000-02719-COA-R3-CV
* * * * * * * * * [3] * * *2002.TN.0000129
* * * * * * * * * [4] * * *January 29, 2002
* * * * * * * * * [5] * * *DEE ANN CURTIS GALLAHER
* * * * * * * * * v.
* * * * * * * * * CURTIS J. ELAM
* * * * * * * * * [6] * * *Appeal from the Juvenile Court for Knox County
No. B-3443 Carey Garrett, Judge
* * * * * * * * * [7] * * *Wayne Decatur Wykoff, Knoxville, Tennessee, for
the Appellant, Dee Ann Curtis Gallaher. L. Caesar Stair, III, Knoxville,
Tennessee, for the Appellee, Curtis J. Elam. Paul G. Summers, Attorney
General & Reporter, and Stuart F. Wilson-Patton, Senior Counsel, Office of
the Attorney General, Nashville, Tennessee, for the Intervening Petitioner,
State of Tennessee.
* * * * * * * * * [8] * * *The opinion of the court was delivered by:
Houston M. Goddard, Presiding Judge
* * * * * * * * * [9] * * *This is an appeal by the State of Tennessee from
a determination of the Juvenile Court of Knox County which held Tenn. Comp.
R & Regs. 1240-2-4-.03(4), issued pursuant to T.C.A. 36-5-101,
unconstitutional as violative of Section 1 of the 14th Amendment to the
Constitution of the United States. Dee Ann Curtis Gallaher also appeals,
contending that the Trial Court was in error in setting child support. We
affirm the Trial Court in its finding the Regulation in question
unconstitutional and vacate the judgment as to child support.
* * * * * * * * * [10] * * Tenn.R.App.P. 3 Appeal as of Right; Judgment of
the Juvenile Court Affirmed in Part; Vacated in Part; and Remanded
* * * * * * * * * [11] * * Houston M. Goddard, P.J., delivered the opinion
of the court, in which D. Michael Swiney, J., joined. Herschel P. Franks,
J., filed a dissenting opinion.
* * * * * * * * * [12] * * OPINION
* * * * * * * * * [13] * * The principal issue raised in this appeal is
whether the following rule and regulation promulgated by the Department of
Human Services, pursuant to T.C.A. 36-5-101, violates the Equal Protection
Provision contained in Section 1 of Amendment 14 to the United States
Constitution:
* * * * * * * * * [14] * * Children of the obligor who are not included in a
decree of child support shall not be considered for the purposes of reducing
the obligor's net income or in calculating the guideline amount. Tenn. Comp.
R & Regs. 1240-2-4-.03(4).
* * * * * * * * * [15] * * Because the facts are undisputed and only a
question of law is presented for our review of the Trial Court's finding the
foregoing rule and regulation unconstitutional is de novo without a
presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26
(Tenn. 1996).
* * * * * * * * * [16] * * Jacob Dylan Gallaher was born to Dee Ann Curtis
Gallaher on August 25, 1993. Blood test results show a 99.76 percent
probability that Curtis J. Elam was the father of Jacob. An agreed order was
entered on September 27, 1994, declaring him to be such and establishing
child support at $750 per month.
* * * * * * * * * [17] * * At the time of conception of Jacob, Dr. Elam was
married and the father of three children. At a hearing before the Referee in
which Ms. Gallaher was seeking additional child support, the Referee
increased the child support to $2100 per month, and ordered Dr. Elam to pay
$200 per month as additional support because the father exercised no
visitation privileges.
* * * * * * * * * [18] * * Dr. Elam appeals the Referee's decision to the
Juvenile Court. The Juvenile Judge entered an order holding the guidelines
in general violated the Doctrine of Separation of Powers and the specific
guideline in question violated the Due Process and Equal Protection Clauses
of the State and Federal Constitutions. He thereupon awarded child support
in the amount of $1600, the amount Ms. Gallaher testified was necessary for
Jacob's support, plus an additional $200 because the father did not exercise
his visitation rights. Nash v. Mulle, 846 S.W.2d 803 (Tenn. 1993). Finally,
he ordered $15,000 to be placed in a trust fund by Dr. Elam for the benefit
of Jacob.
* * * * * * * * * [19] * * Both Ms. Gallaher and the State of Tennessee
appeal the Trial Court's decision but only the State addresses the
constitutional issue.
* * * * * * * * * [20] * * The State points out that there is a strong
presumption that legislative acts and those which include, under the holding
of our courts, rules and regulations promulgated by various departments of
government are constitutional, and that every doubt should be resolved in
favor thereof. It also cites cases which hold that the Equal Protection
Clause guarantees all persons similarly situated will be treated alike, that
in this case we should not indulge in a strict scrutiny, but rather a
"reduced scrutiny or rational basis test," and that statutory
classifications will be upheld if "some reasonable basis can be found for
the classification...or any state of facts may reasonably be conceived to
justify it." Riggs v. Burson, 941 S.W.2d 44 (Tenn.1997).
* * * * * * * * * [21] * * We agree with the foregoing statement of law.
* * * * * * * * * [22] * * We have found no Tennessee case which addresses
the specific issue raised, but in one case, State ex rel. v. Poteet, an
unreported opinion of this Court filed in Nashville on March 17, 1999, where
the facts were the reverse in that the putative father of a child born out
of wedlock was ordered to pay child support without considering the fact
that he had three additional children by a subsequent marriage.
* * * * * * * * * [23] * * This Court affirmed the action of the Trial Court
in awarding the first-born child 21 percent under the guidelines and did not
consider the other three children subsequently born. In that case no
constitutional issue was raised, but in a concurring opinion Judge Koch
strongly suggests that had it been raised the regulation in question could
very well have been held unconstitutional.
* * * * * * * * * [24] * * The language Judge Koch used is instructive:
* * * * * * * * * [25] * * There has been surprising little judicial
consideration of the constitutional legitimacy of the "first families first"
bias inherent in child support guidelines like the ones currently in effect
in Tennessee. Only one court, in a very cursory fashion, has held that the
guidelines can withstand rational basis equal protection scrutiny. See
Feltman v. Feltman, 434 N.W.2d 590, 592 (S.D. 1989). However, this holding
prompted a dissenting justice to observe that the classification between
children of a former marriage and children of a current marriage is
"unconstitutional because it discriminates against children of a
`non-custodial' parent's second family, denying them equal protection under
the law. This statute classifies children by accident of their birth, a
classification that has no rational relationship to any legitimate
governmental interest." Feltman v. Feltman, 434 N.W.2d at 593-94 (Henderson.
J., dissenting). Others have raised similar concerns, not only about the
reasonableness of the "first families first" bias but also about its effects
on other fundamental rights and interests of the non-custodial parent and
his or her spouse. See Rebecca B. Garland, Second Children Second Best?
Equal Protection for Successive Families Under State Child Support
Guidelines. 18 Hastings Const. L.Q. 881 (1991).
* * * * * * * * * [26] * * This issue involves a child's right to receive
support from a common biological parent. All children of the same parent
have the right to share fairly with their siblings in their common parent's
resources. When other states have adopted child support guidelines that
accommodate this right, the Department cannot place administrative
convenience ahead of fundamental fairness. The Department cannot simply
shrug its bureaucratic shoulders and announce that it has done the best it
can.
* * * * * * * * * [27] * * Tennessee's child support guidelines contain the
standards by which they should be measured. Their stated purpose is "to make
child support awards more equitable by ensuring more consistent treatment of
persons in similar circumstances." Tenn. Comp. R. & Regs. r.
1240-2-4-.02(2)(b). It should be apparent that the circumstances of children
with a common biological parent are similar. Accordingly, when this issue is
properly raised in a future case, the courts should put the guidelines'
"first families first" bias to the test and should carefully consider
whether it passes muster under the state and federal constitutions.
* * * * * * * * * [28] * * As already noted, the Juvenile Judge found that
the provision violated the Equal Protection Clause of the United States
Constitution, as well as the Due Process Clause and the Doctrine of
Separation of Powers provision of the Tennessee Constitution, which results
in this appeal, wherein the constitutional issues are addressed by the
office of the Attorney General of this State.
* * * * * * * * * [29] * * The Juvenile Court, in ruling on the Equal
Protection feature of this appeal, relied upon two dissenting opinions. One
from the State of South Dakota, and the other from the State of Florida. In
both of those cases, the majority found that the applicable statute should
be viewed in the light of rational standard basis, rather than a suspect
classification or a fundamental right. In both cases it was the last-born
child who was given short shrift.
* * * * * * * * * [30] * * In Feltman v. Feltman, 434 N.W.2d 590, 593 (S.D.
1989), Justice Henderson dissented from the majority opinion upholding the
South Dakota Statute, and used the following language:
* * * * * * * * * [31] * * Are children of a second marriage "children of a
lesser god"?
* * * * * * * * * [32] * * Are children of a second marriage lesser children
under the United States Constitution?
* * * * * * * * * [33] * * Are children of a second marriage any less hungry
or naked without the support of their father?
* * * * * * * * * [34] * * Should we weep for children of a second marriage
at their birth, rather than at their death?
* * * * * * * * * [35] * * This decision is reduced to an old adage, "First
come, first served." In my judgment, all of God's children, born of the
first or second marriage, must be afforded the same consideration under law.
* * * * * * * * * [36] * * We have, before us, yet another case where the
"guidelines chart" is literally supreme. It is further noted, by this
minority writer, that the majority suggests, perhaps inferentially, that the
priority of the child support for the first marriage results in "imperfect
results." Indeed, the law is not, perfect, but as we write it, we should
strive for its perfection.
* * * * * * * * * [37] * * SDCL 25-7-7 is unconstitutional because it
discriminates against children of a "non-custodial" parent's second family,
denying them equal protection under the law. This statute classifies
children by accident of time of birth; a classification that has no rational
relationship to any legitimate governmental interest. Conceptually, this
discrimination is as irrational, and hence unconstitutional, as
discrimination against illegitimate children.
* * * * * * * * * [38] * * In Pohlmann v. Pohlmann, 703 So.2d 1121, 1128
(Fla.App. 5 Dist. 1997) Justice Harris also dissented from the majority
opinion upholding the Florida Statute in an equally vigorous manner:
* * * * * * * * * [39] * * The dissent in Feltman asks the question: "Are
the children of a second marriage children of a lesser god"? It also asks
whether such children are lesser under the United States Constitution; are
they less hungry or less naked without their parent's support" It finally
asks whether we should weep for the children of a second marriage when they
are born instead of when they die? The dissent in Feltman's response to
these questions is that all children of the parent should be considered
equal. The dissent asserts, as do I, that the mere fact that discrimination
is in the guidelines or in the statute does not make it right, nor does it
make it constitutional. Nor does the fact that it is designed by some
committee make it so. (Emphasis in original.)
* * * * * * * * * [40] * * Even though it is a discomforting topic, perhaps
we should consider the fairness issue. Suppose it were the mother who was
required to pay support to the children of her first marriage. And assume
that upon remarriage she elects to have additional children. By doing so,
she has voluntarily become unemployed rendering further child support
problematic. Assume further that she elects to become a stay-at-home mother
to raise her new children. The court would not, could not, and should not
intervene. And there is a good reason. The children of the first marriage
simply have no more veto power over the non-custodial parent's future
reproductive decisions than a child of an intact marriage has over his
parents' decision to have additional children. And such children of the
first marriage, at least in my view, have no vested right to a higher
standard of living based on an allocation of a greater percentage of their
parent's income than do the children of a second marriage.
* * * * * * * * * [41] * * Because the state has no business discriminating
between children based solely on the fact of a divorce, there is no
legitimate state purposes in requiring a parent to allocate his or her
income more to one child than another. The state's attempt to do so is
state-mandated, court-enforced child abuse; it is not only cruel
discrimination, it is unconstitutional.
* * * * * * * * * [42] * * We find the dissenting opinions more persuasive
than the persuasive authority of the majority opinions, and adopt the
reasoning thereof in the disposition of this appeal.
* * * * * * * * * [43] * * As heretofore noted, the Trial Court also found
the regulation in question violates the constitutional provision as to Due
Process and the Doctrine of Separation of Powers. However, in light of the
disposition of the Equal Protection issue, we do not deem it necessary to
make a judgment as to the other grounds relied upon by the Juvenile Judge.
* * * * * * * * * [44] * * Having determined that the rule and regulation
hereinbefore set out is constitutionally infirm, we recognize that an appeal
has been filed by the mother of the child in question taking exception to
the amount of support decreed by the Juvenile Judge.
* * * * * * * * * [45] * * It appears that Dr. Elam's income for the year
1999, the last year figures were available prior to the judgment below, is
somewhat of an aberration, in that the proof shows the doctor had
considerably more income in the two preceding years. We believe it is
appropriate to remand the case for the Juvenile Judge to hear additional
proof as to Dr. Elam's net income as defined by the guidelines and then make
the following awards: (1) award for child support; (2) award for any
arrearage which may be found; (3) if he finds it appropriate, require an
additional payment for the fact that the child's custody is exclusively with
the mother, and (4) if he finds it appropriate, establish a trust fund for
educational purposes.
* * * * * * * * * [46] * * As to how the child support award should be
calculated, it appears there are perhaps two methods. Number one is to
determine an award under the guidelines for four children and make an award
of one-fourth of that amount to Jacob. note1 The other method would be to
determine the appropriate amount under the guidelines for three children,
deduct that amount from Dr. Elam's net monthly income, and make an award to
Jacob applying the guideline percent for one child.
* * * * * * * * * [47] * * In view of the fact that the first-born three
children are living in one household rather than separate households, where
household expenses would in large measure be the same for one child as for
three, it would appear the latter method would be preferable under the facts
of this case.
* * * * * * * * * [48] * * For the foregoing reasons the judgment of the
Juvenile Court is affirmed in part, vacated in part, and the cause remanded
for proceedings not inconsistent with this opinion. Costs of appeal are
adjudged one-half against the State and one-half against Dr. Elam.
* * * * * * * * * [49] * * DISSENTING OPINION
* * * * * * * * * [50] * * Tennessee Comp. R. & Regs. 1240-2-4-.03(4),
promulgated by the Department of Human Services pursuant to Tenn. Code Ann.
§36-5-101 reads:
* * * * * * * * * [51] * * Children of the obligor who are not included in a
decree of child support shall not be considered for the purposes of reducing
the obligor's net income or in calculating the guideline amount. In
addition, these children should not be considered by the court as a reason
for deviation unless they meet the requirements of Rule 1240-2-4-.04(4).
* * * * * * * * * [52] * * This Rule was found to be unconstitutional by the
majority on the grounds that the quoted provision "discriminates" against
other children of obligor, and in this case residing in the household of the
obligor.
* * * * * * * * * [53] * * I dissent from the majority's holding for several
reasons. First, courts are admonished not to decide constitutional questions
unless it is "absolutely necessary". Strait v. Burdin, 924 S.W.2d 82 (Tenn.
1996).
* * * * * * * * * [54] * * The majority recognizes that the constitutional
issue would not call for a strict scrutiny analysis, but rather that the
"reduced scrutiny or rational basis test" is applicable. See Riggs v.
Burson, 941 S.W.2d 44 (Tenn. 1997).
* * * * * * * * * [55] * * This record presents no factual basis for either
the Trial Court or this Court to reach the constitutional issue raised. One
of appellee's arguments is that the guidelines treat children differently
who are subject to a support order, as opposed to those who are not, because
the child who gets a support award gets a definite percentage of the
obligor's income and there is no showing that the others will get an equal
amount. Appellee, however, has provided no evidence that this was actually
the case. The father has earned an average of approximately $300,000.00 per
year for the past five years, which puts him in the top 1% of income of all
income tax filers. note2 The three children living with the father enjoy a
very high standard of living, including private schools at the cost of
$3,000.00 per month, reside in a home with a monthly mortgage payment of
$3,800.00, and have access to expensive motor vehicles, thereby enjoying an
unreasonably high standard of living, while the biological child which is
subject to the guidelines must exist on a small fraction of such benefits.
The facts of this case demonstrate that this child, if anything, gets
unequal treatment, vis a vis the marital children. Yet the majority
addresses the constitutional issue and holds the above-mentioned regulation
unconstitutional, without citing any case authority for its position, but
misguidedly relies on two maudlin dissents from other jurisdictions for its
decision.
* * * * * * * * * [56] * * It is the duty of this Court and all courts to
uphold a statute if the statute is not purely arbitrary. Epstein v. State,
366 S.W.2d 914 (Tenn. 1963).
* * * * * * * * * [57] * * The guidelines state they were enacted to comply
with federal and state requirements, and that some of the goals behind the
enactment of the same were to "decrease the number of impoverished children
living in single parent families", to "make child support awards more
equitable by ensuring more consistent treatment" of similarly situated
individuals, to provide guidelines to parties and the courts and to improve
the efficiency of the court process, and to "ensure that when parents live
separately, the economic impact on the child(ren) is minimized and to the
extent that either parent enjoys a higher standard of living, the child(ren)
share(s) in that higher standard." Tenn. Comp. R. & Regs. 1240-2-4-.02. The
guidelines also provide that they are to be applied as a rebuttable
presumption, and that if the court finds sufficient evidence to rebut the
presumption, it can make a different award so long as the court makes
specific findings regarding why the guideline amount is inappropriate, and
so long as the court consider the best interests of the child. Tenn. Comp.
R. & Regs. 1240-2-4-.02(7).
* * * * * * * * * [58] * * The dissenting opinions that the majority relies
upon assert that the guidelines are unwise and are inequitable. However, our
Supreme Court has stated that it is not authorized to strike down a statute
that the court may consider unwise or inequitable, but the statute must
create a real deprivation of constitutional rights. Baldwin v. Knight, 569
S.W.2d 450 (Tenn. 1978).
* * * * * * * * * [59] * * These guidelines provide a multitude of valid
reasons for their existence, including equity and predictability of child
support awards and, more importantly, to ensure children are not adversely
impacted because their parents do not live together. The guidelines ensure
that children who do not live with the parent who makes substantial sums of
money, will get the benefit of the parent's higher income, just as if they
lived in the parent's household. While it is true that this child's mother
can pay for basic necessities on her income of $36,000.00 per year, it
certainly does not provide a standard of living anywhere near that of the
father's three other children, who enjoy the benefits of an income of ten
times that amount or more in some years than this child's mother earns.
* * * * * * * * * [60] * * The application of the guidelines in this case is
fair, and does not treat this child any better than the other children. In
fact, if it were not for the guidelines, this child would certainly be
treated much worse than the other children, as has been aptly demonstrated
by the father's vehement resistance to paying child support in this case.
note3 Even with the guideline support, this child will likely not have all
of the material things enjoyed by the other children. Thus, there is no
disparate treatment. Given the circumstances of the case, there can be
deviations from the guidelines, since they are just a rebuttable
presumption. In this case if the father could show that the child support in
accordance with the guidelines would cause a negative impact on his other
children and create economic hardship, then the court has the authority to
order a downward deviation. The guidelines expressly provide for this in
Tenn. Comp. R. & Regs. 1240-2-4-.04(4), and state that the court may
consider such an action as necessary to "achieve equity between the
parties". With this "escape valve" provision in place, there can be little
argument that the guidelines create disparate treatment, since the court has
the authority to consider hardships which would affect the other children.
note4
* * * * * * * * * [61] * * I would uphold the guidelines as constitutional
and resolve every doubt in favor of constitutionality. Riggs v. Burson, 941
S.W.2d 44 (Tenn. 1997); In re Adoption of M.J.S., 44 S.W.3d 41 (Tenn. Ct.
App. 2000). Also, as this Court has previously recognized, the guidelines
have been before our Supreme Court on many occasions and no concern has been
expressed regarding their constitutionality. See State ex rel. Armstrong v.
Coleman, 2001 WL 557991 (Tenn. Ct. App. May 24, 2001), citing State, ex rel.
Coleman v. Clay, 805 S.W.2d 752 (Tenn.1991); Nash v. Mulle, 846 S.W.2d 803
(Tenn.1993); Jones v. Jones, 930 S.W.2d 541 (Tenn.1996); Brooks v. Brooks,
992 S.W.2d 403 (Tenn.1999).
* * * * * * * * * [62] * * I would reverse the Judgment of the Trial Court
and enter Judgment in accordance with the guidelines.
* * * * * * * * * [63] * * Herschel Pickens Franks, J.

--------------------------------------------------------------

* * * * * * * * * * Opinion Footnotes

--------------------------------------------------------------

* * * * * * * * * [64] * * Note 1 - This was the method employed by this
Court in the case of Adams v. Reed, 874 S.W.2d 61 (Tenn. Ct. App. 1993),
which was decided prior to the promulgation of the regulation here under
siege.
* * * * * * * * * [65] * * Note 2 - Source: IRS data supplied to Congress;
1999 adjusted gross income of $293,000.00 up, puts taxpayer in the top 1% of
income of all filers.
* * * * * * * * * [66] * * Note 3 - Some individuals only learn through
experience the reality of the ancient Appalachian folklore, that if you
dance you have to pay the fiddler.
* * * * * * * * * [67] * * Note 4 - The restriction in the guidelines as to
children not in the decree goes to establishing the guideline percentage and
not whether their support would create a hardship on the obligor.

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good post

When I read about "children of a parent" should all share equally
their parent's wealth, I agree to a certain extent. That extent is
the fact that if they must all share equally in their parent's wealth,
they also share the "ups and downs" of it...including, lower
salaries.

It seems that while my husband got laid off and I paid his child
support, the state of Texas, nor the ex, nor the child from his
previous marriage thought it was fair for this child to suffer the
"lower income" of the father. However, it was fair under the law for
OUR son to suffer the lower income of the father. With that said, I
have no problem if she wants to share the "ups and downs"...but it's
not fair one bit that it's my son and I who sacrificed when he lost
his job...the ones who sacrificed putting him through some college
courses to be able to get another job, which of course, turns into
higher expenses for us as a family, less for OUR son to enjoy...yet
once he gets the higher paying job, his daughter gets to reap the
benefits of that. Our son didn't have a choice on whether his dad
lost his job or not, whether he had more things or not or whether we
sacrificed or not...yet his daughter is entitled to a higher standard
of living now, and even with his decrease in income, she's still
entitled to the higher standard of living from her father's income.

With that said, it might be that indeed my son has a nice standard of
living, probably close or maybe higher than his daughter because "I
FULLY SUPPORT HIM"...This higher standard offered by me is not a
"super high rich, extravagant life", no brand name clothes like his
half-sister, no vacations every other month, like his half-sister,
just a nicer home, in a better neighborhood, because that's where I
choose to spend my money...If I were divorced from his dad, he would
be doing really well...sad but true.

Well, only 6 more years of this...geez...it was 6 more years 2 years
ago...but yes, she failed school, so our countdown clock hasn't
moved...

whatamess wrote:
When I read about "children of a parent" should all share equally
their parent's wealth, I agree to a certain extent. That extent is
the fact that if they must all share equally in their parent's wealth,
they also share the "ups and downs" of it...including, lower
salaries.

It seems that while my husband got laid off and I paid his child
support, the state of Texas, nor the ex, nor the child from his
previous marriage thought it was fair for this child to suffer the
"lower income" of the father. However, it was fair under the law for
OUR son to suffer the lower income of the father. With that said, I
have no problem if she wants to share the "ups and downs"...but it's
not fair one bit that it's my son and I who sacrificed when he lost
his job...the ones who sacrificed putting him through some college
courses to be able to get another job, which of course, turns into
higher expenses for us as a family, less for OUR son to enjoy...yet
once he gets the higher paying job, his daughter gets to reap the
benefits of that. Our son didn't have a choice on whether his dad
lost his job or not, whether he had more things or not or whether we
sacrificed or not...yet his daughter is entitled to a higher standard
of living now, and even with his decrease in income, she's still
entitled to the higher standard of living from her father's income.

With that said, it might be that indeed my son has a nice standard of
living, probably close or maybe higher than his daughter because "I
FULLY SUPPORT HIM"...This higher standard offered by me is not a
"super high rich, extravagant life", no brand name clothes like his
half-sister, no vacations every other month, like his half-sister,
just a nicer home, in a better neighborhood, because that's where I
choose to spend my money...If I were divorced from his dad, he would
be doing really well...sad but true.

Run the numbers, and get "divorced" on paper if that's really
advantageous. This is what this evil system drives people to. One of
the reasons my GF and I will not get married is that we don't want my ex
getting her claws on her money.

- Ron ^*^

whatamess wrote:
Here are some things I just don't seem to understand.

1. If it costs more to house someone in jail per year, than child
support is in many of the cases of a parent who is not supporting
their child, not even including the loss of tax revenue from that
invividual, isn't it in the "best interest of the child" and the
community as a whole for the darn government to pay the child support
and leave the NCP alone? I mean, honestly, the child is not receiving
"their" money and putting their NCP in jail is not going to help that
situation anyway.


I'm going to explain something, and this isn't just a NCP thing: we
have a government that, for the last half century, has thought that the
best approach to lower things that we don't like is to throw people in
jail for longer and longer terms. Drugs, prostitution, things like
that. We are a country of zero tolerance and even less common sense.
And yes, you going to jail will not put bread on your kid's table, but
it will put bread on the CO's table, not to mention votes for the
politician who's "tough on crime" and "for the American family".

"whatamess" wrote
......................
Well, only 6 more years of this...geez...it was 6 more years 2 years
ago...but yes, she failed school, so our countdown clock hasn't
moved...
==
Hopefully, this area of family law will change in the near future as it is
one in which the majority
of people should agree is unjust. OTOH, I can't believe it became this way
at all because it blatently
victimizes children solely on birth order. The real kicker for me was that
the ex had a net income
of 48k per year including the child support we paid while ours was less than
half that--But, because government
safety net programs (reduced school lunches, sliding scale daycare, etc) are
based on gross income with no allowable
deduction for child support paid, our kids with half the net income
qualified for nothing, while their older half-siblings
qualified for nearly everything. Our child support order was doubled, from
$600. to 1200. *after* our 2 kids were born and the judge's
attitude was as nauseating as our worthless attorney. Yes, there was a lot
of anger on my part that a judge could
so cavalierly disregard our childrens' needs. We survived intact but there
are subsequent children all over this country teetering on the edge of
abject
poverty so half-siblings can dress in fancy frocks. One appellate judge
called these younger half-siblings the "Cinderella Children." Fortunately,
the
years do go quickly. Are you sure the clock got reset because the child
failed school? It doesn't always and varies by state. What state
controls your order?

"John Meyer" wrote in message
. ..
whatamess wrote:
Here are some things I just don't seem to understand.

1. If it costs more to house someone in jail per year, than child
support is in many of the cases of a parent who is not supporting
their child, not even including the loss of tax revenue from that
invividual, isn't it in the "best interest of the child" and the
community as a whole for the darn government to pay the child support
and leave the NCP alone? I mean, honestly, the child is not receiving
"their" money and putting their NCP in jail is not going to help that
situation anyway.


I'm going to explain something, and this isn't just a NCP thing: we
have a government that, for the last half century, has thought that the
best approach to lower things that we don't like is to throw people in
jail for longer and longer terms. Drugs, prostitution, things like
that. We are a country of zero tolerance and even less common sense.
And yes, you going to jail will not put bread on your kid's table, but
it will put bread on the CO's table, not to mention votes for the
politician who's "tough on crime" and "for the American family".

Kinda reminds me of the woman who took away the driver's license of her
children's father because he could not afford to pay "child support". He was
an unemployed truck driver (the only kind of job he ever knew) applying for
a new truck driving job. Needless to say, he ended up in prison where it
costs the taxpayers in excess of $60,000 a year to punish him for not paying
approximately $6,000 a year. Makes sense to me.............

"Gini" wrote in message news:wtULh.2289$zN.23@trndny03...

"whatamess" wrote
..........................
Everyday I battle these things. If all children are entitled to
support (at outrageous amounts) from both their parents, why is it
that it only applies to the NCP? Can someone please tell me if I
should divorce my husband so that my child has the same rights as his
half-sister?
==
Herein lies the judicial reasoning for/against the support of subsequent
children. This case mentions other cases that you might wish to read.
I have posted Pohlmann v Pohlmann here a few times over the years and it
can
be found via Google. It is a remarkable judicial tribute to our childrens'
dilemma.
There are mothers of subsequent children here on the newsgroup (including
myself, but my steps are now grown) who understand exactly what you are
dealing with. Cutting these children out is a profound injustice and
hopefully the CS guidelines that fail to recognize this will be changed.

Here's the GOOD news: You now have the opportunity to build an asset
portfolio where your children will benefit as the rightful heirs. At least
it's some kind of compensation for the injustice forced upon them by the
court people during all those years. As for the grown children of the lazy
"child support" woman. Oh well; they can go pack sand............




Gallaher v. Elam

No. E2000-02719-COA-R3-CV (Tenn.App. 01/29/2002)



[1] IN THE COURT OF APPEALS OF TENNESSEE AT
KNOXVILLE
July 11, 2001 Session
[2] No. E2000-02719-COA-R3-CV
[3] 2002.TN.0000129
[4] January 29, 2002
[5] DEE ANN CURTIS GALLAHER
v.
CURTIS J. ELAM
[6] Appeal from the Juvenile Court for Knox County
No. B-3443 Carey Garrett, Judge
[7] Wayne Decatur Wykoff, Knoxville, Tennessee, for
the Appellant, Dee Ann Curtis Gallaher. L. Caesar Stair, III, Knoxville,
Tennessee, for the Appellee, Curtis J. Elam. Paul G. Summers, Attorney
General & Reporter, and Stuart F. Wilson-Patton, Senior Counsel, Office of
the Attorney General, Nashville, Tennessee, for the Intervening
Petitioner,
State of Tennessee.
[8] The opinion of the court was delivered by:
Houston M. Goddard, Presiding Judge
[9] This is an appeal by the State of Tennessee
from
a determination of the Juvenile Court of Knox County which held Tenn.
Comp.
R & Regs. 1240-2-4-.03(4), issued pursuant to T.C.A. 36-5-101,
unconstitutional as violative of Section 1 of the 14th Amendment to the
Constitution of the United States. Dee Ann Curtis Gallaher also appeals,
contending that the Trial Court was in error in setting child support. We
affirm the Trial Court in its finding the Regulation in question
unconstitutional and vacate the judgment as to child support.
[10] Tenn.R.App.P. 3 Appeal as of Right; Judgment of
the Juvenile Court Affirmed in Part; Vacated in Part; and Remanded
[11] Houston M. Goddard, P.J., delivered the opinion
of the court, in which D. Michael Swiney, J., joined. Herschel P. Franks,
J., filed a dissenting opinion.
[12] OPINION
[13] The principal issue raised in this appeal is
whether the following rule and regulation promulgated by the Department of
Human Services, pursuant to T.C.A. 36-5-101, violates the Equal Protection
Provision contained in Section 1 of Amendment 14 to the United States
Constitution:
[14] Children of the obligor who are not included in
a
decree of child support shall not be considered for the purposes of
reducing
the obligor's net income or in calculating the guideline amount. Tenn.
Comp.
R & Regs. 1240-2-4-.03(4).
[15] Because the facts are undisputed and only a
question of law is presented for our review of the Trial Court's finding
the
foregoing rule and regulation unconstitutional is de novo without a
presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26
(Tenn. 1996).
[16] Jacob Dylan Gallaher was born to Dee Ann Curtis
Gallaher on August 25, 1993. Blood test results show a 99.76 percent
probability that Curtis J. Elam was the father of Jacob. An agreed order
was
entered on September 27, 1994, declaring him to be such and establishing
child support at $750 per month.
[17] At the time of conception of Jacob, Dr. Elam
was
married and the father of three children. At a hearing before the Referee
in
which Ms. Gallaher was seeking additional child support, the Referee
increased the child support to $2100 per month, and ordered Dr. Elam to
pay
$200 per month as additional support because the father exercised no
visitation privileges.
[18] Dr. Elam appeals the Referee's decision to the
Juvenile Court. The Juvenile Judge entered an order holding the guidelines
in general violated the Doctrine of Separation of Powers and the specific
guideline in question violated the Due Process and Equal Protection
Clauses
of the State and Federal Constitutions. He thereupon awarded child support
in the amount of $1600, the amount Ms. Gallaher testified was necessary
for
Jacob's support, plus an additional $200 because the father did not
exercise
his visitation rights. Nash v. Mulle, 846 S.W.2d 803 (Tenn. 1993).
Finally,
he ordered $15,000 to be placed in a trust fund by Dr. Elam for the
benefit
of Jacob.
[19] Both Ms. Gallaher and the State of Tennessee
appeal the Trial Court's decision but only the State addresses the
constitutional issue.
[20] The State points out that there is a strong
presumption that legislative acts and those which include, under the
holding
of our courts, rules and regulations promulgated by various departments of
government are constitutional, and that every doubt should be resolved in
favor thereof. It also cites cases which hold that the Equal Protection
Clause guarantees all persons similarly situated will be treated alike,
that
in this case we should not indulge in a strict scrutiny, but rather a
"reduced scrutiny or rational basis test," and that statutory
classifications will be upheld if "some reasonable basis can be found for
the classification...or any state of facts may reasonably be conceived to
justify it." Riggs v. Burson, 941 S.W.2d 44 (Tenn.1997).
[21] We agree with the foregoing statement of law.
[22] We have found no Tennessee case which addresses
the specific issue raised, but in one case, State ex rel. v. Poteet, an
unreported opinion of this Court filed in Nashville on March 17, 1999,
where
the facts were the reverse in that the putative father of a child born out
of wedlock was ordered to pay child support without considering the fact
that he had three additional children by a subsequent marriage.
[23] This Court affirmed the action of the Trial
Court
in awarding the first-born child 21 percent under the guidelines and did
not
consider the other three children subsequently born. In that case no
constitutional issue was raised, but in a concurring opinion Judge Koch
strongly suggests that had it been raised the regulation in question could
very well have been held unconstitutional.
[24] The language Judge Koch used is instructive:
[25] There has been surprising little judicial
consideration of the constitutional legitimacy of the "first families
first"
bias inherent in child support guidelines like the ones currently in
effect
in Tennessee. Only one court, in a very cursory fashion, has held that the
guidelines can withstand rational basis equal protection scrutiny. See
Feltman v. Feltman, 434 N.W.2d 590, 592 (S.D. 1989). However, this holding
prompted a dissenting justice to observe that the classification between
children of a former marriage and children of a current marriage is
"unconstitutional because it discriminates against children of a
`non-custodial' parent's second family, denying them equal protection
under
the law. This statute classifies children by accident of their birth, a
classification that has no rational relationship to any legitimate
governmental interest." Feltman v. Feltman, 434 N.W.2d at 593-94
(Henderson.
J., dissenting). Others have raised similar concerns, not only about the
reasonableness of the "first families first" bias but also about its
effects
on other fundamental rights and interests of the non-custodial parent and
his or her spouse. See Rebecca B. Garland, Second Children Second Best?
Equal Protection for Successive Families Under State Child Support
Guidelines. 18 Hastings Const. L.Q. 881 (1991).
[26] This issue involves a child's right to receive
support from a common biological parent. All children of the same parent
have the right to share fairly with their siblings in their common
parent's
resources. When other states have adopted child support guidelines that
accommodate this right, the Department cannot place administrative
convenience ahead of fundamental fairness. The Department cannot simply
shrug its bureaucratic shoulders and announce that it has done the best it
can.
[27] Tennessee's child support guidelines contain
the
standards by which they should be measured. Their stated purpose is "to
make
child support awards more equitable by ensuring more consistent treatment
of
persons in similar circumstances." Tenn. Comp. R. & Regs. r.
1240-2-4-.02(2)(b). It should be apparent that the circumstances of
children
with a common biological parent are similar. Accordingly, when this issue
is
properly raised in a future case, the courts should put the guidelines'
"first families first" bias to the test and should carefully consider
whether it passes muster under the state and federal constitutions.
[28] As already noted, the Juvenile Judge found that
the provision violated the Equal Protection Clause of the United States
Constitution, as well as the Due Process Clause and the Doctrine of
Separation of Powers provision of the Tennessee Constitution, which
results
in this appeal, wherein the constitutional issues are addressed by the
office of the Attorney General of this State.
[29] The Juvenile Court, in ruling on the Equal
Protection feature of this appeal, relied upon two dissenting opinions.
One
from the State of South Dakota, and the other from the State of Florida.
In
both of those cases, the majority found that the applicable statute should
be viewed in the light of rational standard basis, rather than a suspect
classification or a fundamental right. In both cases it was the last-born
child who was given short shrift.
[30] In Feltman v. Feltman, 434 N.W.2d 590, 593
(S.D.
1989), Justice Henderson dissented from the majority opinion upholding the
South Dakota Statute, and used the following language:
[31] Are children of a second marriage "children of
a
lesser god"?
[32] Are children of a second marriage lesser
children
under the United States Constitution?
[33] Are children of a second marriage any less
hungry
or naked without the support of their father?
[34] Should we weep for children of a second
marriage
at their birth, rather than at their death?
[35] This decision is reduced to an old adage,
"First
come, first served." In my judgment, all of God's children, born of the
first or second marriage, must be afforded the same consideration under
law.
[36] We have, before us, yet another case where the
"guidelines chart" is literally supreme. It is further noted, by this
minority writer, that the majority suggests, perhaps inferentially, that
the
priority of the child support for the first marriage results in "imperfect
results." Indeed, the law is not, perfect, but as we write it, we should
strive for its perfection.
[37] SDCL 25-7-7 is unconstitutional because it
discriminates against children of a "non-custodial" parent's second
family,
denying them equal protection under the law. This statute classifies
children by accident of time of birth; a classification that has no
rational
relationship to any legitimate governmental interest. Conceptually, this
discrimination is as irrational, and hence unconstitutional, as
discrimination against illegitimate children.
[38] In Pohlmann v. Pohlmann, 703 So.2d 1121, 1128
(Fla.App. 5 Dist. 1997) Justice Harris also dissented from the majority
opinion upholding the Florida Statute in an equally vigorous manner:
[39] The dissent in Feltman asks the question: "Are
the children of a second marriage children of a lesser god"? It also asks
whether such children are lesser under the United States Constitution; are
they less hungry or less naked without their parent's support" It finally
asks whether we should weep for the children of a second marriage when
they
are born instead of when they die? The dissent in Feltman's response to
these questions is that all children of the parent should be considered
equal. The dissent asserts, as do I, that the mere fact that
discrimination
is in the guidelines or in the statute does not make it right, nor does it
make it constitutional. Nor does the fact that it is designed by some
committee make it so. (Emphasis in original.)
[40] Even though it is a discomforting topic,
perhaps
we should consider the fairness issue. Suppose it were the mother who was
required to pay support to the children of her first marriage. And assume
that upon remarriage she elects to have additional children. By doing so,
she has voluntarily become unemployed rendering further child support
problematic. Assume further that she elects to become a stay-at-home
mother
to raise her new children. The court would not, could not, and should not
intervene. And there is a good reason. The children of the first marriage
simply have no more veto power over the non-custodial parent's future
reproductive decisions than a child of an intact marriage has over his
parents' decision to have additional children. And such children of the
first marriage, at least in my view, have no vested right to a higher
standard of living based on an allocation of a greater percentage of their
parent's income than do the children of a second marriage.
[41] Because the state has no business
discriminating
between children based solely on the fact of a divorce, there is no
legitimate state purposes in requiring a parent to allocate his or her
income more to one child than another. The state's attempt to do so is
state-mandated, court-enforced child abuse; it is not only cruel
discrimination, it is unconstitutional.
[42] We find the dissenting opinions more persuasive
than the persuasive authority of the majority opinions, and adopt the
reasoning thereof in the disposition of this appeal.
[43] As heretofore noted, the Trial Court also found
the regulation in question violates the constitutional provision as to Due
Process and the Doctrine of Separation of Powers. However, in light of the
disposition of the Equal Protection issue, we do not deem it necessary to
make a judgment as to the other grounds relied upon by the Juvenile Judge.
[44] Having determined that the rule and regulation
hereinbefore set out is constitutionally infirm, we recognize that an
appeal
has been filed by the mother of the child in question taking exception to
the amount of support decreed by the Juvenile Judge.
[45] It appears that Dr. Elam's income for the year
1999, the last year figures were available prior to the judgment below, is
somewhat of an aberration, in that the proof shows the doctor had
considerably more income in the two preceding years. We believe it is
appropriate to remand the case for the Juvenile Judge to hear additional
proof as to Dr. Elam's net income as defined by the guidelines and then
make
the following awards: (1) award for child support; (2) award for any
arrearage which may be found; (3) if he finds it appropriate, require an
additional payment for the fact that the child's custody is exclusively
with
the mother, and (4) if he finds it appropriate, establish a trust fund for
educational purposes.
[46] As to how the child support award should be
calculated, it appears there are perhaps two methods. Number one is to
determine an award under the guidelines for four children and make an
award
of one-fourth of that amount to Jacob. note1 The other method would be to
determine the appropriate amount under the guidelines for three children,
deduct that amount from Dr. Elam's net monthly income, and make an award
to
Jacob applying the guideline percent for one child.
[47] In view of the fact that the first-born three
children are living in one household rather than separate households,
where
household expenses would in large measure be the same for one child as for
three, it would appear the latter method would be preferable under the
facts
of this case.
[48] For the foregoing reasons the judgment of the
Juvenile Court is affirmed in part, vacated in part, and the cause
remanded
for proceedings not inconsistent with this opinion. Costs of appeal are
adjudged one-half against the State and one-half against Dr. Elam.
[49] DISSENTING OPINION
[50] Tennessee Comp. R. & Regs. 1240-2-4-.03(4),
promulgated by the Department of Human Services pursuant to Tenn. Code
Ann.
§36-5-101 reads:
[51] Children of the obligor who are not included in
a
decree of child support shall not be considered for the purposes of
reducing
the obligor's net income or in calculating the guideline amount. In
addition, these children should not be considered by the court as a reason
for deviation unless they meet the requirements of Rule 1240-2-4-.04(4).
[52] This Rule was found to be unconstitutional by
the
majority on the grounds that the quoted provision "discriminates" against
other children of obligor, and in this case residing in the household of
the
obligor.
[53] I dissent from the majority's holding for
several
reasons. First, courts are admonished not to decide constitutional
questions
unless it is "absolutely necessary". Strait v. Burdin, 924 S.W.2d 82
(Tenn.
1996).
[54] The majority recognizes that the constitutional
issue would not call for a strict scrutiny analysis, but rather that the
"reduced scrutiny or rational basis test" is applicable. See Riggs v.
Burson, 941 S.W.2d 44 (Tenn. 1997).
[55] This record presents no factual basis for
either
the Trial Court or this Court to reach the constitutional issue raised.
One
of appellee's arguments is that the guidelines treat children differently
who are subject to a support order, as opposed to those who are not,
because
the child who gets a support award gets a definite percentage of the
obligor's income and there is no showing that the others will get an equal
amount. Appellee, however, has provided no evidence that this was actually
the case. The father has earned an average of approximately $300,000.00
per
year for the past five years, which puts him in the top 1% of income of
all
income tax filers. note2 The three children living with the father enjoy a
very high standard of living, including private schools at the cost of
$3,000.00 per month, reside in a home with a monthly mortgage payment of
$3,800.00, and have access to expensive motor vehicles, thereby enjoying
an
unreasonably high standard of living, while the biological child which is
subject to the guidelines must exist on a small fraction of such benefits.
The facts of this case demonstrate that this child, if anything, gets
unequal treatment, vis a vis the marital children. Yet the majority
addresses the constitutional issue and holds the above-mentioned
regulation
unconstitutional, without citing any case authority for its position, but
misguidedly relies on two maudlin dissents from other jurisdictions for
its
decision.
[56] It is the duty of this Court and all courts to
uphold a statute if the statute is not purely arbitrary. Epstein v. State,
366 S.W.2d 914 (Tenn. 1963).
[57] The guidelines state they were enacted to
comply
with federal and state requirements, and that some of the goals behind the
enactment of the same were to "decrease the number of impoverished
children
living in single parent families", to "make child support awards more
equitable by ensuring more consistent treatment" of similarly situated
individuals, to provide guidelines to parties and the courts and to
improve
the efficiency of the court process, and to "ensure that when parents live
separately, the economic impact on the child(ren) is minimized and to the
extent that either parent enjoys a higher standard of living, the
child(ren)
share(s) in that higher standard." Tenn. Comp. R. & Regs. 1240-2-4-.02.
The
guidelines also provide that they are to be applied as a rebuttable
presumption, and that if the court finds sufficient evidence to rebut the
presumption, it can make a different award so long as the court makes
specific findings regarding why the guideline amount is inappropriate, and
so long as the court consider the best interests of the child. Tenn. Comp.
R. & Regs. 1240-2-4-.02(7).
[58] The dissenting opinions that the majority
relies
upon assert that the guidelines are unwise and are inequitable. However,
our
Supreme Court has stated that it is not authorized to strike down a
statute
that the court may consider unwise or inequitable, but the statute must
create a real deprivation of constitutional rights. Baldwin v. Knight, 569
S.W.2d 450 (Tenn. 1978).
[59] These guidelines provide a multitude of valid
reasons for their existence, including equity and predictability of child
support awards and, more importantly, to ensure children are not adversely
impacted because their parents do not live together. The guidelines ensure
that children who do not live with the parent who makes substantial sums
of
money, will get the benefit of the parent's higher income, just as if they
lived in the parent's household. While it is true that this child's mother
can pay for basic necessities on her income of $36,000.00 per year, it
certainly does not provide a standard of living anywhere near that of the
father's three other children, who enjoy the benefits of an income of ten
times that amount or more in some years than this child's mother earns.
[60] The application of the guidelines in this case
is
fair, and does not treat this child any better than the other children. In
fact, if it were not for the guidelines, this child would certainly be
treated much worse than the other children, as has been aptly demonstrated
by the father's vehement resistance to paying child support in this case.
note3 Even with the guideline support, this child will likely not have all
of the material things enjoyed by the other children. Thus, there is no
disparate treatment. Given the circumstances of the case, there can be
deviations from the guidelines, since they are just a rebuttable
presumption. In this case if the father could show that the child support
in
accordance with the guidelines would cause a negative impact on his other
children and create economic hardship, then the court has the authority to
order a downward deviation. The guidelines expressly provide for this in
Tenn. Comp. R. & Regs. 1240-2-4-.04(4), and state that the court may
consider such an action as necessary to "achieve equity between the
parties". With this "escape valve" provision in place, there can be little
argument that the guidelines create disparate treatment, since the court
has
the authority to consider hardships which would affect the other children.
note4
[61] I would uphold the guidelines as constitutional
and resolve every doubt in favor of constitutionality. Riggs v. Burson,
941
S.W.2d 44 (Tenn. 1997); In re Adoption of M.J.S., 44 S.W.3d 41 (Tenn. Ct.
App. 2000). Also, as this Court has previously recognized, the guidelines
have been before our Supreme Court on many occasions and no concern has
been
expressed regarding their constitutionality. See State ex rel. Armstrong
v.
Coleman, 2001 WL 557991 (Tenn. Ct. App. May 24, 2001), citing State, ex
rel.
Coleman v. Clay, 805 S.W.2d 752 (Tenn.1991); Nash v. Mulle, 846 S.W.2d 803
(Tenn.1993); Jones v. Jones, 930 S.W.2d 541 (Tenn.1996); Brooks v. Brooks,
992 S.W.2d 403 (Tenn.1999).
[62] I would reverse the Judgment of the Trial Court
and enter Judgment in accordance with the guidelines.
[63] Herschel Pickens Franks, J.

--------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------

[64] Note 1 - This was the method employed by this
Court in the case of Adams v. Reed, 874 S.W.2d 61 (Tenn. Ct. App. 1993),
which was decided prior to the promulgation of the regulation here under
siege.
[65] Note 2 - Source: IRS data supplied to Congress;
1999 adjusted gross income of $293,000.00 up, puts taxpayer in the top 1%
of
income of all filers.
[66] Note 3 - Some individuals only learn through
experience the reality of the ancient Appalachian folklore, that if you
dance you have to pay the fiddler.
[67] Note 4 - The restriction in the guidelines as
to
children not in the decree goes to establishing the guideline percentage
and
not whether their support would create a hardship on the obligor.








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